REUTERS | Ronen Zvulun
May 3, 2011

Excluding submissions breaches rules of natural justice

The Scottish courts call it “failing to exhaust your jurisdiction”. The English courts haven’t come up with a snazzy name like that, they just say the adjudicator failed to consider submissions before him or ignored aspects of a party’s submissions. It all boils down to the parties having a fair hearing and the outcome is the same. The adjudicator hasn’t done what was asked of him and his decision is unenforceable due to a breach of the rules of natural justice.

The topic has been before both the Scottish and the English courts recently. Continue reading →

REUTERS | Herwig Prammer
April 27, 2011

April 2011 digest: a royal wedding and bank holidays

Martin Luther:

“There is no more lovely, friendly and charming relationship, communion or company than a good marriage.”

No summary of April would be complete without mentioning William and Kate’s wedding. Kate’s dress has a lot to live up to, but we can only speculate on what it may be like, going to press two days before the big event! Hence a picture of Westminster Abbey instead. Continue reading →

REUTERS | Sean Yong
April 26, 2011

Facilitation payments and the Bribery Act 2010

The Guidance to the Bribery Act 2010 published recently by the Ministry of Justice confirms that small bribes paid to facilitate routine Government actions overseas – facilitation payments – could trigger liability under the Act. This presents those advising clients operating overseas with a dilemma; how do we advise a client that they should go ahead and do business in countries where corruption (or at least facilitation payments) is a way of life?

Continue reading →

REUTERS | Jason Lee
April 26, 2011

Tripping up over jurisdictional challenges

I have frequently written about adjudicators getting jurisdictional challenges round their ears. Probably too frequently for my liking and here I am again, on the same subject.

This time I’ve gone north of the border. There is nothing wrong with that as the Construction Act 1996 is the same either side of the border and so is the Scheme for Construction Contracts 1998, to all intents and purposes (although this may change later this year…). Continue reading →

REUTERS | Jason Lee
April 26, 2011

Very soon the TCC’s future will arrive

At the construction law and strategies conference on 12 April 2011, several leading lights in construction law gave talks. Among them was Akenhead J, the head of the TCC, who spoke about its history and its future. Akenhead J regularly talks to the construction industry. He is always keen to emphasise that, as a wholly High Court institution, the TCC is thriving, with five full time High Court Judges and a sixth being sought.

Continue reading →

REUTERS | Mike Blake
April 20, 2011

James’ review of education capital: the future for building schools

The long awaited James review has finally been published. Led by Sebastian James (a director at electrical retailer Dixons), the review panel was tasked with considering the Department for Education’s (DfE) existing capital expenditure and making recommendations for future delivery models for capital investment in schools.

There is a lot at stake given that, even with well publicised cuts, the budget for capital expenditure in schools is £15 billion over the next four years. Continue reading →

REUTERS | Jose Miguel Gomez
April 19, 2011

6 months to go: should we fear the Construction Act 1996 changes?

On 12 April 2011, the SCL held one of its regular meetings. The subject was the forthcoming changes to the Construction Act 1996, under the title “Payment under the new Construction Act: practical dilemmas“. The meeting was chaired by Tony Blackler, with Rupert Choat and John Riches speaking.

The changes to the Construction Act 1996 (in the LDEDC Act 2009) are expected to come into force in October 2011. That is less than six months away. Regular readers of PLC Construction will be familiar with the changes. (For example, see our FAQs, practice notes, checklists, standard clauses, slideshow, and blog posts).

However, we also thought you might be interested in the discussion at the SCL meeting. Continue reading →

REUTERS | Jason Lee
April 19, 2011

Tolent 1 – 0 Yuanda

My last post was all about the “great” section 108A debate (or the “not so great” section 108 debate as one of my fellow PLC bloggers put it!). I’m back again to talk about it, or at least the subject of Tolent clauses, which section 108A was intended to banish from our world of adjudication.
Section 108A is not even in force yet, but it has already been considered in the Scottish case of Profile Projects v Elmwood. Not in the context of the debate over the narrow or wide interpretation that I talked about previously, but rather when considering whether a Tolent clause (that is, a clause requiring the referring party to pay all the costs of the adjudication), is contrary to the provisions of section 108, and in particular a party’s right to “…give notice at any time of his intention to refer a dispute to adjudication” (section 108(2)(a), Construction Act 1996). Continue reading →

REUTERS | Paulo Whitaker
April 15, 2011

Relevant event must cause actual delay

In Adyard Abu Dhabi v SDS Marine Services, the Commercial Court had to determine whether SDS could rescind two shipbuilding contracts and reclaim the sums it had paid to Adyard. Adyard had commenced proceedings, arguing that SDS could not rescind, as SDS had caused delays to the project.

Adyard cited the prevention principle: the principle that SDS could not rely on the consequences of its own default, when rescinding the contracts. The court found against Adyard in that respect, but went to look at whether Adyard had proved that SDS caused the delay to the project in any event. In doing so, the court considered the judgments of Lord Carloway and Lord Osborne in the Scottish appellate decision in City Inn v Shepherd. This post focuses on those causation issues.

Continue reading →